Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1887-11-13
ARGUMENT
ON The NOTION FOR 4 NEW TRIAL.
Van Bakers Case Heard Before Judge Boyd
Yesterday.
STRONG POINTS FOR fHE PRISONER.
Was Frank P. Spivsy Unqualified for a
Juror?
NEW CUMBERLAND, November 12.

NEW CUMBERLAND, November IL.
Special Telegram to the Sunday Register.
Hon John A. Hutchinson this morning
made the closing argument for the prosecu-
tion in the Van Baker case. He opened,
briefly reviewing the points raised by the
defense upon which was based the claim
that injustice was done the prisoner. After
laying down propositions Of law, be went
into an exhaustive citstion Of authorities,
the burden of his argument being that the
action of Juror Spivey could not prejudice
the prisoner That so far as the prisoner
is concerned he should be hanged. This
was the most atrocious murder of the age.
The Anarchists were at least honest IN
belief that they We're benefitting
the poor as against the rich and did their
deed openly, but here was msn, the hus-
band of one and son Of the other, muir
dered women, who for the sake of filthy
gain, struck down the victims with no eye
but that of God to
SEE THE FOUL DEED.
There was no injustice in the conduct OF
the jury. The separations were not proven,
excepting the time when the crowd in the
court house caused momentary separa-
ton.
The drinking of whisky and brandy by
the jury showed 10 prejudice to the pris-
oner. While there was such drinking it
was only in small quantities, and not
while the jury were deliberatiug on the
verdict.
And in further evidence Of injustice done
the prisoner, they bring in the affidavit of
Oliver Grimes, az newly discovered evil
dence, but the witness simply says lie
SAW A WOMAN
on the McWha premises after Baker left
the house, that afternoon OF the murder,
and does not swear that it is either of the
two women. 1t amounts TO nothing. Ii
would be simply cumulative, corrobOra-
tive and collateral evidence: and is there
fore such as will not constitute grounds
for new trial.
In concluding, Mr. Hutchinson said
that the evidence VAS conclusive of the
prisoners guilt, and that there was no
error in the case sufficient to set aside The
verdict. and it is the duty of the court to
see that the law should he executed, how
ever painful It NAV be to the court to en-
force.
cor. ARNETT'S Address.
The afternoon was occupied by Col. Ar
nett, OF Wheeling, w. Va, introducing the
(. l. 4 =, L,,
capitulation Of the case. Among the errors
he assigned none was more fatal than the
instructions offered by the State and
allowed to 20 10 the jury. That here was
man who was tO he hanged because the
motive would be presumed 10 he that he
murdered his wife in order to Obtain her
separate estate. If such was the law then
every man whose wife had a separate es-
tate, in event of his wife being murdered,
and circumstantial evidence relied upon TO
convict, would he liable to be hanged for
the deed. The evidence was plainly in
sufficient to warrant the verdict and
NEEDS NO ARGUMENT,
as it is we'll known to the Court.
Ifthere is a separation proved, and such
separation was Intentional on the part OF
the Juror, the law presumes that the prls'
Oner was prejudiced thereby. If there
was whisky drunk or bought on the
day the verdict was rendered by any
of the jury, it must be equally true
and the evidence of the Jury or the bailiff
is not sufficient to rebut the presumption,
and the verdict should not stand. The
evidence of Captain Stewart, that he was
in the court room with part Of the jury,
on the evening the jury were sent ont,
was sufficient to set the verdict aside. The
fact of two strangers talking with Spivey
out in front of the court house should do it.
The gas pipe line man who talked with
Spivey for fifteen or twenty minutes out
OF the presence of the deputy, az proved
by two witnesses, would do it. The state
ment of Spivey previous TO going on the
jury, rs sworn to by nine witnesses, and
promising the defendant TO clear him if
placed on the jury, is conclusive proof
that some, at least, Of the Jurors had been
biased, and Spivey in particular, by his
solemn pledge deluded and deceived the
prisoner TO get place on the jury TO try
him for bis life.
BARK = AFFlDAN IL.
The affidavit of David l.. Barr, a resi-
dent of East Liverpool, o., was also sub-
mitted.
He swears that Frank Z. Spiyey,
was one of the Jurors in the above case
That some time in July last, or jus. before
the time that the Circuit Court met in
Hancock county, West Virginia, that tried
Van Il. Baker for the murder of his wife
and mother-in-law. That Frank p. Spiyey
being in my place Of business on the time
above mentioned, in course Of onyersation
with one Duffy in regard to the guilt or
innocence of Baker, said that Baker
was guilty, and that he would bet
$50; yes, he would bet So that Baker
would hang, and he Was going down to
New Cumberland to help hang the 8
OF b.
ID. T. Burchard and - Plattenburg
each swear that they were present at the
time of said conversation, and both say
that the affidavit of Barr is correct.
Other witnesses swear to substantially
the same facts OF Spivey making similar
declarations at different times.
Spivey swore on his Toir. Dire that he
did not think that he had expressed an
opinion in regard to the case
At the conclusion of Col. Arnett's argu-
ment court adjourned. Judge Boyd's de-
cision may not be rendered for some time.
Baker was returned to the Wheeling Jail
this evening.